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REWIND: International Business News #94

This week in international business news, it is patent, trademark, and more patent. Could one small step for FindtheBest be a giant leap for patent law? Is Google making an extra effort to steer clear of lawsuit by FIFA over World Cup? EU investigates “patent box” tax breaks; could that spell trouble for Apple, Starbucks, and Fiat?

Intellectual Property

  • A recent decision in Lumen View Technology, LLC v., Inc., may reduce the number of frivolous lawsuits filed by non-practicing entities.  Relying on the standard set forth in the recent Supreme Court case, Octane Fitness, LLC v. ICON Health & Fitness, Inc., the Southern District of New York awarded the prevailing defendant its fees and costs.  Lumen View, a non-practicing entity, filed suit against FindTheBest, claiming patent infringement.  Lumen View lost the suit and its patent was invalidated.  FindTheBest sought fees and costs, and in a still rare decision, was granted its motion.  Judge Cote of the SDNY stated that the Lumen View case qualified as a “prototypical exceptional case” contemplated in the Octane Fitness decision.  This is in contrast to the “objectively baseless” standard typically used to award fees.  Judge Cote noted that the decision in Octane Fitness was to deter nuisance lawsuits, such as the suit filed by Lumen View.  The Octane decision may continue to shape fee awards as some courts are remanding matters where fees have been denied to be reviewed under the new standard.
  • While soccer fans around the world prepare for the World Cup, Google may pass on generating advertising revenue for searches related to the international competition.  Unlike most other searches conducted on Google, paid advertisements do not appear on the results page for searches related to the World Cup.  This may be to avoid claims of infringing on the trademark and intellectual property rights of FIFA, the organization in charge of the World Cup.  FIFA has trademarked several terms related to the event, including “World Cup” and “Brazil 2014.”  Under its AdWords Policy, Google does not allow competitors or third-parties who advertise with Google to use trademarked terms in their ad copy, but allows them to bid on terms that may be trademarked as part of their keywords.  Over the years, several companies have sued Google for allowing advertisers to bid on such terms, claiming trademark infringement.  Google had settled many of these suits and Google may be seeking to avoid any issues with FIFA and the World Cup.
  • Tax breaks given by countries in the European Union to a select group of companies, such as Apple, Starbucks, and Fiat, are under investigation by the EU.  The investigation comes at a time when the EU tries to increase its revenues and reduce deficits.  An area of focus in the investigation is whether countries such as the UK, Ireland, and the Netherlands have been providing these companies with tax reductions on incomes from patents and other innovations.  Called “patent box” tax breaks, some countries may have permitted profits derived from intellectual property to be taxed at a lower rate, possibly as low as five percent.  The EU considers any preferential treatment on tax rates to be illegal “state aid,” and a finding of wrongdoing may require the identified companies to pay back any assessed tax deficiencies.